Barker v. Ellington Board of Education
RULING denying 29 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 12/5/2013. (Malone, P.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ELLINGTON BOARD OF
CIVIL ACTION NO.
DECEMBER 5, 2013
RULING RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. No. 29)
Plaintiff Deborah Barker (“Barker”) claims that defendant Ellington Board of
Education (“EBE”) denied her tenure and terminated her because of her age, in violation
of the Age Discrimination in Employment Act (ADEA), title 29, United States Code,
sections 621 through 634. In response, EBE has filed this Motion for Summary
Judgment (“Def.’s Mot. for Summ. J.”) (Doc. No. 29).
FACTUAL AND PROCEDURAL BACKGROUND
Barker’s Employment by EBE
EBE first employed Barker for the 2003-2004 school year, when Barker was 50
years old. Defendant’s Local Rule 56(a)(1) Statement (“Def.’s L.R. 56(a)(1) Stmt.”)
(Doc. No. 32) at ¶ 20; Plaintiff’s Local Rule 56(a)(2) Statement (“Pl.’s L.R. 56(a)(2)
Stmt.”) (Doc. No. 37) at ¶ 20. Barker was first a part-time aide for the kindergarten early
intervention literacy and numeracy program at Center Elementary School. Id. Then, for
the 2004-2005 school year, Barker was appointed to the position of part-time first grade
math intervention teacher at Windermere School. Def.’s L.R. 56(a)(1) Stmt. at ¶ 22;
Pl.’s L.R. 56(a)(2) Stmt. at ¶ 22. At that time, Frank Milbury was the principal of
Though Barker’s position at Windermere was eliminated due to budget cuts at
the conclusion of the 2004-2005 school year and Barker was nonrenewed, she was
rehired at Windermere that Fall by Milbury to work as a long-term first grade substitute
teacher. Def.’s L.R. 56(a)(1) Stmt. at ¶¶ 25, 28; Pl.’s L.R. 56(a)(2) Stmt. at ¶¶ 25, 28.
At the end of the 2005-2006 school year, Barker was recalled for an opening as a sixth
grade teacher at Windermere, which she accepted. Def.’s L.R. 56(a)(1) Stmt. at ¶¶ 31,
33; Pl.’s L.R. 56(a)(2) Stmt. at ¶¶ 31, 33.
Milbury’s Supervision of Barker
Barker was supervised by Milbury for three years—2004-2005, 2006-2007, and
2007-2008. Def.’s L.R. 56(a)(1) Stmt. at ¶ 38; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 38. In the
course of his supervision, Milbury conducted formal and informal evaluations of Barker.
Def.’s L.R. 56(a)(1) Stmt. at ¶ 39; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 39. Milbury’s formal
evaluations followed three stages: a pre-observation conference where Milbury and
Barker would review the script for a lesson; an observation of Barker teaching that
lesson; and a post-observation conference where Barker would receive feedback from
Milbury on his observation. Id. Barker emphasizes that Milbury’s formal evaluations
were conducted in accordance with EBE’s Professional Growth and Evaluation Plan’s
(“Evaluation Plan”) guidelines for formal “observations.” Pl.’s L.R. 56(a)(2) Stmt. at ¶
39. Milbury did not retain any written documents related to the observations he
conducted of Barker in the course of formally evaluating her. Def.’s L.R. 56(a)(1) Stmt.
at ¶ 40; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 40.
Parties dispute the degree of preparation Milbury committed to informal
evaluations. EBE alleges that Milbury “simply walked into the classroom unannounced
and evaluated the ‘feel of the room,’ transitions, time on task and student engagement.”
Def.’s L.R. 56(a)(1) Stmt. at ¶ 41. Barker notes that Milbury testified that he always had
an agenda for his informal observations and asserts that the actions described by EBE
were part of that agenda. Pl.’s L.R. 56(a)(2) Stmt. at ¶ 41. Both parties agree,
however, that Milbury did not assess content during these informal evaluations. Def.’s
L.R. 56(a)(1) Stmt. at ¶ 42; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 42.
In recalling his informal evaluations of Barker, Milbury noted that Barker showed
“some disorganization”; “[w]hen it was scripted and she was confident,” Milbury testified,
“things went according to plan. When she was confused or had ideas, things didn’t
necessarily go according to plan.” Def.’s L.R. 56(a)(1) Stmt. at ¶¶ 43-44; Pl.’s L.R.
56(a)(2) Stmt. at ¶¶ 43-44. Milbury also testified that Barker sought assistance when
classes did not go according to plan, that her issues were “no greater than normal,” and
that she improved. Pl.’s L.R. 56(a)(2) Stmt. at ¶ 43. Milbury observed that Barker “was
stressed out at times” when placed under pressure, but suggested that such pressure
was understandable and that Barker handled that pressure well. Def.’s L.R. 56(a)(1)
Stmt. at ¶ 45; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 45. Milbury noted that Barker had trouble
with leveling of work and providing independent appropriate work for some students,
and that this problem was shared by many other teachers. Def.’s L.R. 56(a)(1) Stmt. at
¶ 46; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 46.
Milbury wrote three Annual Evaluation Reports (“AER”)—for the 2005-2006,
2006-2007, and 2007-2008 school years—on Barker’s teaching. Def.’s L.R. 56(a)(1)
Stmt. at Exs. N, O, P. Barker denies EBE’s claim that the entirety of these AERs was
based on a review of a portfolio she prepared; she instead asserts that Milbury drew
from this portfolio for only a portion of the AERs and notes that Milbury testified that he
took his classroom observations into consideration when writing the AERs. Def.’s L.R.
56(a)(1) Stmt. at ¶ 47; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 47.
Moccio’s Supervision of Barker
Milbury retired at the conclusion of the 2007-2008 school year. Def.’s L.R.
56(a)(1) Stmt. at ¶ 54; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 54. Steven Moccio was hired as the
new Principal, effective July 1, 2008, and Kristy LaPorte was hired as a part-time
Assistant Principal and part-time special education supervisor. Def.’s L.R. 56(a)(1)
Stmt. at ¶¶ 55-56; Pl.’s L.R. 56(a)(2) Stmt. at ¶¶ 55-56. When Moccio and LaPorte
began at Windermere, Barker was 56 years old. Def.’s L.R. 56(a)(1) Stmt. at ¶ 57; Pl.’s
L.R. 56(a)(2) Stmt. at ¶ 57.
Moccio’s first observation of Barker’s teaching, in September 2008, was informal;
Barker reported that the evaluation based on this observation was “very positive,” and
that Moccio did not provide any criticisms of her performance. Def.’s L.R. 56(a)(1) Stmt.
at ¶¶ 60-61; Pl.’s L.R. 56(a)(2) Stmt. at ¶¶ 60-61. Through December 2008, Moccio had
no criticisms of Barker and, during this period, Barker did not believe that Moccio was
discriminating against her. Def.’s L.R. 56(a)(1) Stmt. at ¶ 63; Pl.’s L.R. 56(a)(2) Stmt. at
Moccio conducted his first formal observation of Barker in January of 2009.
Def.’s L.R. 56(a)(1) Stmt. at ¶ 64; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 64. In his evaluation,
Moccio provided four suggestions for addressing those aspects of Barker’s performance
that he felt needed improvement: 1) start the class by stating the objective of the lesson
and concluding the class with a synopsis of the most important parts of that lesson; 2)
provide students with the curricular objectives and how they relate to prior material
learned; 3) use higher order thinking on Bloom’s Taxonomy rather than purely
knowledge-based skills; and 4) use techniques to address differing learning styles within
the classroom. Def.’s L.R. 56(a)(1) Stmt. at ¶ 68; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 68.
Barker disputes the accuracy of Moccio’s first formal evaluation. Pl.’s L.R.
56(a)(2) Stmt. at ¶¶ 65-66. Barker claims that Moccio was mistaken in writing that she
did not clearly state the objective of the lesson because she displayed a cork board that
clearly stated the lesson objective. Pl.’s L.R. 56(a)(2) Stmt. at ¶ 65. Barker notes that
her claim is corroborated by the evaluation itself, which states that “Mrs. Barker then
utilized a corkboard where she had listed the 6 major biomes found on Earth.” Id.;
Def.’s L.R. 56(a)(1) Stmt. at Exh. R, at 4. Barker also contends that she did use
teaching techniques that addressed different learning styles. Pl.’s L.R. 56(a)(2) Stmt. at
¶ 69. Further, Barker disagrees with Moccio’s implication that she did not encourage
use of the upper levels of Bloom’s Taxonomy in her teaching. Id. at ¶ 74. She
specifically claims that the one example Moccio provided of a lesson that would
promote higher level thinking was a project that she devised for that very purpose. Id.
at Exh. 22, at ¶ 4. The parties agree, however, that when Moccio communicated the
results of his first formal observation to Barker, Barker appeared surprised by his
findings. Def.’s L.R. 56(a)(1) Stmt. at ¶ 75; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 75.
Moccio conducted a second in-class observation of Barker a few weeks later.
Def.’s L.R. 56(a)(1) Stmt. at ¶ 77; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 77. As did the previous
evaluation, Moccio’s second evaluation contained both negative and positive comments
on Barker’s performance. Def.’s L.R. 56(a)(1) Stmt. at ¶ 79; Pl.’s L.R. 56(a)(2) Stmt. at
¶ 79. The evaluation provided three strategies to address those areas still in need of
improvement: 1) clearly state an objective at the beginning of class, organize the lesson
to promote that objective, and ensure that students understand the objective behind any
activity; 2) use informal assessment during class to evaluate how students were
understanding the content of the lesson; and 3) at the beginning and end of class,
provide the students with the “why” behind the activity being performed. Def.’s L.R.
56(a)(1) Stmt. at ¶ 81; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 81.
Barker again contests the accuracy of Moccio’s second evaluation, testifying that
she believed the evaluation was “unfair, inaccurate, and discriminatory.” Pl.’s L.R.
56(a)(2) Stmt. at ¶¶ 80-81. She disagrees with part of the observation section in the
evaluation: she states that a higher proportion of students were “on task” than the
observation reports. Id. at ¶ 78. She also claims that she made multiple efforts to
redirect and alter her lesson when she noticed that doing so was necessary, and that, in
light of one of Moccio’s suggestions from the first evaluation, she made a particular
point of stating the lesson objective of the lesson at the beginning of the lesson. Id., at
Ex. 22, at ¶¶ 6-7. Barker was “very upset” by Moccio’s second evaluation. Def.’s L.R.
56(a)(1) Stmt. at ¶ 83; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 83.
On February 3, 2009, Barker received a letter from Stephen Cullinan, the
Superintendent of Schools, alerting her and all other non-tenured teachers that EBE
would be considering the nonrenewal of all non-tenured teachers at their next meeting
in late February. Def.’s L.R. 56(a)(1) Stmt. at ¶¶ 87-88; Pl.’s L.R. 56(a)(2) Stmt. at ¶¶
87-88. The reason for the nonrenewal was budgetary constraints. Def.’s L.R. 56(a)(1)
Stmt. at ¶ 89; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 89.
Three days later, Moccio conducted another observation of Barker; the
observation was informal, and Moccio informed Barker that the evaluation would not
become part of her personnel file.1 Def.’s L.R. 56(a)(1) Stmt. at ¶¶ 85, 90; Pl.’s L.R.
56(a)(2) Stmt. at ¶¶ 85, 90. The evaluation reported that the given objective “did not
match the instructional strategies implemented;” the lesson’s intent, aside from
reviewing previously taught material, was unclear; questions asked of the students
tested only low level knowledge and did not require the students to use any higher order
thinking; the lesson did not respond to different learning styles; and challenging
assignments for students completing their work early were not provided. Def.’s L.R.
56(a)(1) Stmt. at ¶ 92; id. at Ex. U, at 3.
Barker denies that Moccio’s informal observation reflected any continued
deficiencies in her performance. Def.’s L.R. 56(a)(1) Stmt. at ¶¶ 91-92; Pl.’s L.R.
56(a)(2) Stmt. at ¶¶ 91-92. Moccio’s notes from this observation, according to Barker,
reflect that she “stated the objective of the lesson, described the [“]what and why[”] of
the lesson, called upon students to compare and contrast, which involves one of the
higher learning levels, and used teaching methods that appeal to different learning
styles.” Pl.’s L.R. 56(a)(2) Stmt. at ¶¶ 91-92. Barker claims that, when she met with
Moccio to discuss the informal evaluation, she told him that she believed his judgment
was biased. Pl.’s L.R. 56(a)(2) Stmt. at ¶ 93.
The parties dispute how this observation was arranged. EBE states that Moccio offered
to conduct another informal observation of Barker during the meeting held to discuss the second
evaluation of Barker. Def.’s L.R. 56(a)(1) Stmt. at ¶ 84. Barker denies this statement,
apparently on the basis that she cannot recall whether anything within Moccio’s informal
evaluation is accurate. Pl.’s L.R. 56(a)(2) Stmt. at ¶ 84; id. at Ex. 16, at 169:6-23, 170:12-15.
Barker also denies that she expressed interest in the informal evaluation or agreed to participate
in it. Pl.’s L.R. 56(a)(2) Stmt. at ¶ 86, 90; id. at Ex. 16, at 170:19-22.
EBE voted to nonrenew all 56 non-tenured teachers, including Barker, on
February 25, 2009. Def.’s L.R. 56(a)(1) Stmt. at ¶ 94; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 94.
Barker received notice of her nonrenewal on February 26, 2009. Def.’s L.R. 56(a)(1)
Stmt. at ¶ 95; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 95.
Two days later, Moccio met with Barker and her union representative to discuss
the informal evaluation and reiterated that the evaluation would not be made part of her
personnel file. Def.’s L.R. 56(a)(1) Stmt. at ¶¶ 96-97; Pl.’s L.R. 56(a)(2) Stmt. at ¶¶ 9697. At this meeting, Moccio offered to have LaPorte conduct another informal
evaluation of Barker. Def.’s L.R. 56(a)(1) Stmt. at ¶ 98; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 98.
Moccio told Barker that LaPorte’s informal observation would allow Barker to compare
Moccio’s findings with LaPorte’s to ensure accuracy in the evaluation process. Id.
Barker, however, insists that LaPorte’s evaluation was not used for this purpose, and
that her evaluation contradicted many of Moccio’s criticisms of Barker’s performance.
Pl.’s L.R. 56(a)(2) Stmt. at ¶ 98. Moccio also informed Barker that he would not discuss
his evaluations of her with LaPorte, or give LaPorte any direction in what to look for,
prior to LaPorte’s observation. Def.’s L.R. 56(a)(1) Stmt. at ¶ 99; Pl.’s L.R. 56(a)(2)
Stmt. at ¶ 99.
LaPorte’s Evaluation of Barker
Barker agreed to an informal evaluation by LaPorte. Def.’s L.R. 56(a)(1) Stmt. at
¶ 107; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 107. Barker contends that LaPorte’s observation of
her was not neutral because LaPorte’s judgment was influenced by her knowledge that
Moccio was dissatisfied with Barker’s teaching. Def.’s L.R. 56(a)(1) Stmt. at ¶¶ 100,
110; Pl.’s L.R. 56(a)(2) Stmt. at ¶¶ 100, 110. Barker also contests EBE’s claim that
Moccio and LaPorte did not speak about the reason for the observation before it
occurred; Barker notes that LaPorte testified that Moccio told her that he wanted her to
conduct the observation because he had “concerns” about Barker’s work. Def.’s L.R.
56(a)(1) Stmt. at ¶ 108; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 108; see also Pl.’s L.R. 56(a)(2)
Stmt. at Ex. 19, at 42: 3-8. Moccio, however, refused LaPorte’s requests for
background information about the nature of Moccio’s concerns, or even a copy of his
prior evaluations of Barker. Def.’s L.R. 56(a)(1) Stmt. at ¶ 109; Pl.’s L.R. 56(a)(2) Stmt.
at ¶ 109.
LaPorte’s informal evaluation of Barker took place on March 24, 2009. Def.’s L.R.
56(a)(1) Stmt. at ¶ 111; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 111. LaPorte and Barker met prior
to the observation to discuss Barker’s planned lesson; they also discussed the nature of
Moccio’s concerns after, Barker claims, LaPorte told her that she knew that Moccio had
concerns about her work. Def.’s L.R. 56(a)(1) Stmt. at ¶¶ 113-14; Pl.’s L.R. 56(a)(2)
Stmt. at ¶¶ 113-14. LaPorte and Barker specifically discussed how Barker could use
differentiation of lesson material to accommodate different types of learners during the
observation lesson. Def.’s L.R. 56(a)(1) Stmt. at ¶¶ 114-15; Pl.’s L.R. 56(a)(2) Stmt. at
EBE reports that, based on her conversation with Barker beforehand, LaPorte
went into the observation believing that she would be observing a good lesson; Barker’s
performance during the observation, however, raised significant concerns for LaPorte.
Def.’s L.R. 56(a)(1) Stmt. at ¶¶ 116-17. EBE claims that LaPorte identified the following
deficiencies in Barker’s teaching: the assignment Barker gave to the class only required
them to use knowledge-based learning on Bloom’s Taxonomy; Barker’s heterogeneous
grouping of students was not done appropriately, making the group activities ineffective
and leaving some students behind in the work, and Barker failed to intervene when it
became apparent that the grouping was unsuccessful; and Barker’s lesson did not use
differentiation and did not provide students who finished their work early with activities.
Def.’s L.R. 56(a)(1) Stmt. at ¶¶ 118-128.
Barker asserts that LaPorte’s report regarding the observation lesson was
inconsistent and inaccurate, and that the report’s inaccuracies reveal that LaPorte’s
judgment was biased. Pl.’s L.R. 56(a)(2) Stmt. at ¶¶ 116-17. She alleges that she did
prepare materials that required higher level thinking, and that LaPorte testified that
these higher level materials were available to students who finished their work early. Id.
at ¶¶ 118, 128. She agrees that LaPorte reported that Barker did not use differentiation,
but claims that LaPorte “meant something different from what Moccio meant when he
used that term.” Def.’s L.R. 56(a)(1) Stmt. at ¶ 127; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 127.
As for Barker’s grouping of the students, she alleges that LaPorte’s description of the
grouping was inaccurate and she denies that the students were grouped
inappropriately. Pl.’s L.R. 56(a)(2) Stmt. at ¶¶ 120-21. She takes particular issue with
LaPorte’s characterization of two students as special education students. Id. at ¶¶ 12023. The parties agree that this characterization was mistaken, and that the two students
were not special education students but rather were, in fact, receiving reading support.
Def.’s L.R. 56(a)(1) Stmt. at ¶ 124; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 124.
Moccio’s Decision to Non-Renew Barker
Following LaPorte’s informal observation, LaPorte and Barker met; Barker was
upset about LaPorte’s evaluation. Def.’s L.R. 56(a)(1) Stmt. at ¶ 130; Pl.’s L.R. 56(a)(2)
Stmt. at ¶ 130. LaPorte also reported her findings to Moccio. Def.’s L.R. 56(a)(1) Stmt.
at ¶ 131; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 131. The parties dispute whether LaPorte
discussed Barker’s need for improvement with Moccio; while EBE claims that she did,
Barker notes that Moccio testified that he did not recall such a conversation, and that
LaPorte testified that she gave Moccio her observation report and told him that it
contained her observations and recommendations. Def.’s L.R. 56(a)(1) Stmt. at ¶ 132;
Pl.’s L.R. 56(a)(2) Stmt. at ¶ 132. LaPorte also informed Moccio that Barker was upset
during the post-observation conference. Def.’s L.R. 56(a)(1) Stmt. at ¶ 133; Pl.’s L.R.
56(a)(2) Stmt. at ¶ 133.
Moccio recommended nonrenewal of Barker to Cullinan. Def.’s L.R. 56(a)(1)
Stmt. at ¶ 138; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 138. The parties dispute the basis for this
recommendation. EBE cites to Moccio’s testimony that, based on LaPorte’s
observation and his own evaluation of Barker’s performance, he did not believe that
Barker had made the necessary improvements to her teaching, and, as a result, her
teaching remained deficient. Def.’s L.R. 56(a)(1) Stmt. at ¶¶ 134, 137. Moccio also
testified that, given that this was Barker’s final year as a non-tenured teacher, continued
employment of Barker would not result in any improved performance in the future. Id. at
¶¶135-36. Barker denies EBE’s claims; she insists that she performed quality work and
addressed the issues that Moccio raised with her performance, and claims that the
observation reports were inconsistent and inaccurate. Pl.’s L.R. 56(a)(2) Stmt. at ¶¶
Cullinan and Moccio determined that Barker should be allowed to resign in lieu of
nonrenewal, as was consistent with EBE policy. Def.’s L.R. 56(a)(1) Stmt. at ¶ 139;
Pl.’s L.R. 56(a)(2) Stmt. at ¶ 139. In April of 2009, Moccio met with Barker and two
union representatives to inform her that her nonrenewal would remain in effect and that
she would not be tenured. Def.’s L.R. 56(a)(1) Stmt. at ¶ 140; Pl.’s L.R. 56(a)(2) Stmt.
at ¶ 140. He also offered Barker the opportunity to resign in lieu of nonrenewal. Id.
Barker chose not to resign. Def.’s L.R. 56(a)(1) Stmt. at ¶ 141; Pl.’s L.R. 56(a)(2) Stmt.
at ¶ 141.
In May of 2009, Moccio completed Barker’s Annual Evaluation Report. Def.’s
L.R. 56(a)(1) Stmt. at ¶ 145; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 145. Barker refused to
participate in the Report and did not complete her portions of it. Def.’s L.R. 56(a)(1)
Stmt. at ¶ 146; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 146. In the Report, Moccio identified four
areas in need of improvement in Barker’s performance: 1) increasing the effectiveness
of lessons through a clear statement of the lesson objection and organizing the lesson
to promote achievement of that objective; 2) clearly establishing the “what” and “why”
behind the activity or lesson; 3) developing students’ analytical and comprehension
skills by expanding student learning to the higher levels of Bloom’s Taxonomy; and 4)
increasing the amount of differentiation within the classroom to help meet the needs of
individual learners. Def.’s L.R. 56(a)(1) Stmt. at ¶ 147; Pl.’s L.R. 56(a)(2) Stmt. at ¶
147. EBE alleges that Moccio’s concerns in the Report, with the exception of the clear
statement of the lesson objective, were consistent with those raised by LaPorte in her
informal observation. Def.’s L.R. 56(a)(1) Stmt. at ¶ 148. Barker denies that the Report
was consistent with LaPorte’s observation. Pl.’s L.R. 56(a)(2) Stmt. at ¶ 148.
Barker never complained to any school official that she believed her nonrenewal
was due to her age. Def.’s L.R. 56(a)(1) Stmt. at ¶ 150; Pl.’s L.R. 56(a)(2) Stmt. at ¶
150. Since Moccio has been Principal of Windermere, he has only recommended the
nonrenewal of two non-tenured teachers for performance reasons—Barker and “JB,”
who was 25 years old at the time, and who opted to resign in lieu of termination. Def.’s
L.R. 56(a)(1) Stmt. at ¶ 151; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 151. Barker, however, notes
that Moccio recommended the non-renewal of this younger teacher during the recently
completed academic year, four years after the litigation of her ADEA claim began. Pl.’s
L.R. 56(a)(2) Stmt. at ¶ 151. EBE also claims that Cullinan directly recommended that
another younger teacher, “TL” be nonrenewed.2 Def.’s L.R. 56(a)(1) Stmt. at ¶ 152.
“TL” was 27 at the time of her nonrenewal, and she decided to resign in lieu of
termination. Id. Since Moccio became Principal, one teacher who is older than Barker
and was supervised by Moccio has become tenured: Anita Sussman, who was 60 at the
time of tenure. Def.’s L.R. 56(a)(1) Stmt. at ¶ 153; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 153.
The EBE Special Assistance Program
EBE’s Evaluation Plan governs how both tenured and non-tenured teachers are
evaluated. Def.’s L.R. 56(a)(1) Stmt. at ¶ 11; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 11. Nontenured teachers are evaluated in accordance with the “induction phase” of the
Evaluation Plan, which provides that non-tenured teachers who successfully meet the
requirements of the induction phase become tenured after four years. Def.’s L.R.
56(a)(1) Stmt. at ¶¶ 13-14; Pl.’s L.R. 56(a)(2) Stmt. at ¶¶ 13-14. The Evaluation Plan
allows supervisors to place teachers “who need special assistance in meeting the
Barker denies this statement on the grounds that the source cited for it does not
support it. Pl.’s L.R. 56(a)(2) Stmt. at ¶ 152. EBE appears to have mistakenly cited to the
wrong affidavit for this statement; support for it is found in the Affidavit of Steven A. Moccio, not
the Affidavit of Stephen C. Cullinan, as was cited. See Affidavit of Steven A. Moccio (Doc. No.
30-2), at Ex. E at ¶ 24.
requirements” of the induction phase in a Special Assistance Program. Def.’s L.R.
56(a)(1) Stmt. at ¶ 14; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 14. Parties dispute whether
placement in the Special Assistance Program is mandatory for non-tenured teachers
failing to meet the induction phase’s requirements: EBE highlights the Evaluation Plan’s
statement that a supervision “may” place such a teacher in the Special Assistance
Program, while Barker quotes the Evaluation Plan’s statement that non-tenured
teachers “will” be placed in the Special Assistance Program. Id.
Barker was not placed in the Special Assistance Program prior to her nonrenewal. Moccio has never placed any non-tenured teacher in the Special Assistance
Program prior to non-renewal.3 Def.’s L.R. 56(a)(1) Stmt. at ¶ 18; Pl.’s L.R. 56(a)(2)
Stmt. at ¶ 18. Barker, however, notes that Moccio had never decided to non-renew any
non-tenured teacher other than herself until after Barker raised the failure to place her in
the Special Assistance Program as an issue in her litigation against EBE. Pl.’s L.R.
56(a)(2) Stmt. at ¶ 18. Moccio elected to non-renew one non-tenured teacher, “JB,”
who was in her mid-20s at the time, without first placing her in the Special Assistance
Program; Moccio non-renewed JB in January of 2013, after Barker had filed suit. Def.’s
L.R. 56(a)(1) Stmt. at ¶ 19; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 19.
STANDARD OF REVIEW
A motion for summary judgment is properly granted only if “there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.”
O'Hara v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir.2011).
EBE insists that no school in its district places non-tenured teachers in the Special
Assistance Program; but as both parties agreed to confine discovery to only the practices of
Windermere, and not to inquire into the practices of other schools in the district, the court will
not consider this claim. Def.’s L.R. 56(a)(1) Stmt. at ¶ 17; Pl.’s L.R. 56(a)(2) Stmt. at ¶ 17.
Thus, the role of the district court in deciding a summary judgment motion “is to
determine whether genuine issues of material fact exist for trial, not to make findings of
fact.” Id. In making this determination, the court must resolve all ambiguities and draw
all inferences in favor of the party against whom summary judgment is sought. See
Garcia v. Hartford Police Dep't, 706 F.3d 120, 127 (2d Cir.2013).
“The moving party bears the burden of establishing the absence of any genuine
issue of material fact.” Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d
Cir.2010). Once the moving party has satisfied that burden, to defeat the motion “the
party opposing summary judgment . . . must set forth ‘specific facts' demonstrating that
there is ‘a genuine issue for trial.’” Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009)
(quoting Fed. R. Civ. P. 56(e)). “For summary judgment purposes, a ‘genuine issue’
exists where the evidence is such that a reasonable jury could decide in the non-moving
party's favor.” Cambridge Realty Co., LLC v. St. Paul Fire & Marine Ins. Co., 421 F.
App'x 52, 53 (2d Cir.2011); see also Rojas v. Roman Catholic Diocese of Rochester,
660 F.3d 98, 104 (2d Cir.2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (stating that the non-moving party must
point to more than a mere “scintilla” of evidence in its favor). “[U]nsupported allegations
do not create a material issue of fact.” Weinstock v. Columbia Univ., 224 F.3d 33, 41
EBE argues that, as a threshold matter, this court lacks jurisdiction over Barker’s
ADEA claim because she failed to exhaust her administrative remedies under
Connecticut law. Def.’s Mot. for Summ. J. at 1. EBE also asserts that, even if the court
does have subject matter jurisdiction over Barker’s challenge, this challenge presents
no genuine issue of material fact because Barker has provided no evidence that EBE’s
stated basis for her termination was pretextual. Id.
EBE insists that Barker’s failure to seek a hearing, pursuant to Connecticut
General Statutes §10-151(c), was a failure to exhaust her administrative remedies that
deprives this court of subject matter jurisdiction over her suit. Memorandum of Law in
Support of Motion for Summary Judgment (“Def.’s Summ. J. Mem.”) (Doc. No. 30) at
20. The majority of cases EBE cites in support of this proposition are state court cases.
Id. at 20-23. As EBE itself acknowledges, “state law sources . . . are thoughtful and
persuasive, though not binding. . . .” Insurity, Inc. v. Mutual Group, Ltd., 260 F. Supp.
2d 486, 489 (D. Conn. 2003); see Def.’s Summ. J. Mem. at 22 n.10 (quoting Insurity).
Further, none of these state cases addresses exhaustion under the ADEA, or even
concerns an ADEA claim. See Garcia v. City of Hartford, 292 Conn. 334 (2009)
(addressing whether party seeking petition for writ of mandamus was required to first
exhaust under collective bargaining agreement); Murphy v. Young, 44 Conn. App. 677
(1997) (addressing whether failure to exhaust under section 10-151 deprived court of
subject matter jurisdiction over state law claims); Devlin v. Bennett, 26 Conn. Supp. 102
(1965) (addressing whether non-tenured teachers have a right to a hearing under
section 10-151 when so requested); Diaco v. Norwalk Public School Dist., No.
FSTCV106007107S, 2012 WL 2899100 (Conn. Super. June 19, 2012) (addressing
whether failure to exhaust under section 10-151 deprived court of subject matter
jurisdiction over state law claims). They are thus unhelpful for determining whether
Barker failed to exhaust under the ADEA.
The only federal case cited by EBE, Sekor v. Capwell, 1 F.Supp.2d 140 (D. Conn
1998)—also the only cited case involving an ADEA claim—is inapposite. In Sekor, the
court declined to consider an ADEA claim because it found that the plaintiff’s age
discrimination claim had previously been adequately litigated in a section 10-151
hearing. 1 F.Supp.2d at 145-46. Contrary to EBE’s assertion that this finding is
“directly on point” for the question of exhaustion under the ADEA, Reply to Plaintiff’s
Opposition to the Defendant’s Motion for Summary Judgment (“Def.’s Reply”) (Doc No.
40) at 3, Sekor’s holding concerned only whether the plaintiff’s federal claim was
precluded by the prior litigation of that claim in state proceedings, 1 F.Supp.2d at 145.
The Sekor court did not hold that individuals seeking relief under the ADEA must first
avail themselves of a section 10-151 hearing. Hence, EBE’s arguments that Barker
failed to exhaust by not seeking a section 10-151 hearing are unavailing.
Because Barker’s claim for relief arises under the ADEA, the appropriate source
for determining whether Barker has exhausted is the ADEA itself. The ADEA requires
that individuals alleging age discrimination timely file a charge with the Equal
Employment Opportunity Commission (“EEOC”) and wait 60 days before bringing suit in
federal court. 29 U.S.C. § 626(d)(1). In a state that has its own agency to protect
employees from age discrimination, the claimant must also file a discrimination charge
with that agency within 300 days of the alleged unlawful employment practice before
bringing federal suit. Id. §§ 626(d)(1)(B), 633(b). Connecticut has such an agency—the
Commission on Human Rights and Opportunities (“CHRO”)—and under the Connecticut
Fair Employment Practices Act, an individual alleging age-based employment
discrimination can file a complaint with the CHRO. C.G.S. §§ 46a-82(a), 46a-60(a)(1).
Barker appears to have first filed a Complaint with CHRO, which was then sent to
the EEOC by CHRO. Pl.’s L.R. 56(a)(2) Stmt, at Exh. 13 (EEOC Notice of Receipt of
Charge of Employment Discrimination); see also id. at Exh. 2 (EBE’s Answer to Barker’s
Affidavit of Illegal Discriminatory Practice filed with the CHRO). She also obtained a
“Notice of Right to Sue” from the EEOC on January 25, 2012.4 Id. at Exh. 14. She then
filed a Complaint in this court on March 2, 2012. Complaint. Thus, Barker has
exhausted under the ADEA.5
To withstand a motion for summary judgment, an ADEA claim must survive the
three-part burden-shifting test established by McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). McDonnell, 411 at 802, 805; McPherson v. New York City Dept. of
Educ, 457 F.3d 211, 215 (2006). Under this test,
[A] plaintiff first bears the “minimal” burden of setting out a prima facie
discrimination case, and is then aided by a presumption of discrimination unless
the defendant proffers a “legitimate, nondiscriminatory reason” for the adverse
employment action, in which event, the presumption evaporates and the plaintiff
must prove that the employer's proffered reason was a pretext for discrimination.
Barker was not required to obtain a right-to-sue letter before commencing suit under
the ADEA. See Holowecki v. Federal Exp. Corp., 440 F. 3d 558, 563 (2d Cir. 2006) (“[T]he
ADEA does not require an aggrieved party to receive a right-to-sue letter from the EEOC before
filing suit in federal court.”).
Because the court finds that Barker has fulfilled the exhaustion requirements of the
ADEA, it declines to consider Barker’s argument that EBE waived any argument that Barker
failed to exhaust or EBE’s argument that a failure to exhaust deprives the court of subject matter
jurisdiction. Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary
Judgment (“Pl.’s Mem.”) (Doc. No. 36) at 21; Reply to Plaintiff’s Opposition to the Defendant’s
Motion for Summary Judgment (“Def.’s Reply”) (Doc No. 40) at 1-2.
McPherson, 457 F.3d at 215. On summary judgment, then, the court must examine the
plaintiff’s proffer of evidence to determine whether a jury could reasonably conclude,
based on that proffer, that the plaintiff’s age actually motivated the defendant’s conduct
and that age was the “but for” reason for the defendant’s conduct. Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 141 (2000); Gross v. FBL Financial
Servs., Inc., 557 U.S. 167, 177 (2009).
Prima Facie Case
To establish a prima facie case of age discrimination, Barker must show that 1)
she was within the protected age group, 2) she was qualified for the position, 3) she
experienced adverse employment action, and 4) that action occurred under
circumstances giving rise to an inference of discrimination. Gorzynski v. JetBlue
Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010). EBE concedes, for the purposes of its
Motion for Summary Judgment, that Barker would be able to prove a prima facie case of
age discrimination under the ADEA, as she was within the protected age group, met the
minimum qualifications for the teaching position, experienced an adverse employment
action when her contract was non-renewed and she was denied tenure, and was
replaced by someone younger than her. Def.’s Summ. J. Mem. at 24.
Legitimate Nondiscriminatory Reason
EBE’s burden of production for rebutting Barker’s prima facie case for
discrimination is “not a demanding one,” and requires only “an explanation for the
employment decision,” supported by evidence that, if true, would permit the conclusion
that the reason for the decision was non-discriminatory. Bickerstaff v. Vassar College,
196 F.3d 435, 446 (2d Cir. 1999); Schnabel v. Abramson, 232 F.3d 83, 88 (2d. Cir.
2000). EBE contends that Barker was nonrenewed and denied tenure because “she
was not adequately performing her job, despite being given numerous opportunities to
improve her performance.” Def.’s Summ. J. Mem. at 25. EBE has submitted the critical
evaluations conducted by Moccio and LaPorte as evidence supporting this explanation.
Id. Thus, as EBE has provided a non-discriminatory basis supported by evidence
explaining its non-renewal of Barker, it has satisfied its burden here.
Under the McDonnell Douglas framework, once the defendant has articulated a
non-discriminatory basis for the adverse employment action, “the question in reviewing
a motion for summary judgment becomes whether the evidence, when viewed in the
light most favorable to the plaintiff, is sufficient to sustain a reasonable finding” that the
employment action was actually motivated by discrimination. Tori v. Marist College, 344
Fed. Appx. 697, 699 (2d Cir. 2009). “The plaintiff must produce not simply some
evidence, but sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the defendant were false, and that more likely than
not discrimination was the real reason for the [employment action]. . . . To get to the
jury, it is not enough . . . to disbelieve the employer; the factfinder must [also] believe
the plaintiff's explanation of intentional discrimination.” Weinstock v. Columbia
University, 224 F.3d 33, 42 (2d Cir. 2000) (internal quotation marks and citations
It is permissible “for the trier of fact to infer the ultimate fact of discrimination from
the falsity of the employer’s explanation.” Reeves, 530 U.S. at 147; see also Saulpaugh
v. Monroe Community Hospital, 4 F.3d 134, 142 (2d Cir. 1993) (“[A] factfinder’s disbelief
of a defendant’s proffered rationale may allow it to infer the ultimate fact of intentional
discrimination in some cases.”).6 Further, “[i]n employment discrimination cases,” the
Second Circuit has cautioned, “courts must give particular scrutiny to subjective
evaluation[s], because any defendant can respond to a discrimination charge with a
claim of some subjective preference or prerogative and, if such assertions are accepted,
prevail in virtually every case and a discriminatory consideration such as age could play
into the formation of subjective impressions.” Weiss v. JPMorgan Chase & Co., 332
Fed.Appx. 659, 661 (2d Cir. 2009) (quotation marks and citation omitted). Barker
appears to argue that a jury could find that EBE’s explanation for her nonrenewal was
pretextual because it was based on evaluations that Barker asserts are inaccurate and,
from that finding, infer discriminatory intent. Pl.’s Mem. at 34-35.
A genuine issue of disputed fact as to pretext is raised by Barker’s evidence that
Moccio’s evaluations of her performance, which form the basis for her nonrenewal, are
internally inconsistent, contradictory, and undermined by LaPorte’s observations. EBE
urges that Barker was non-renewed because her classroom performance was
inadequate, as documented by both Moccio and LaPorte, and because she failed to
EBE argues that pretext is “only established where Plaintiff has evidence of both (a)
falsity and (b) plausibility.” Def.’s Reply at 4 (emphasis in original). Nothing within St. Mary’s
Honor Center v. Hicks, 509 U.S. 502 (1993), which EBE cites in support of this proposition,
creates such a cut-and-dry standard, however. Hicks merely holds that, once the defendant has
met its burden of production, “the trier of fact proceeds to decide the ultimate question: whether
plaintiff has proven that the defendant intentionally discriminated against” her, and that rejection
of the defendant’s proffered reasons may suffice to show, but does not compel a finding of,
intentional discrimination. 509 U.S. at 511 (internal quotation marks and citation omitted).
Determining whether a reasonable jury could reject a defendant’s proffer and from that, find that
the defendant intentionally discriminated against the plaintiff, must be done “case-by-case.”
Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000).
improve. Def.’s Summ. J. Mem. at 25. In response, Barker argues that Moccio’s
criticisms are undermined by his actual descriptions of her teaching.7
She first notes that, though Moccio claimed in his first formal observation of
Barker that she failed to give a clear statement of her lessons, his observation summary
states that Barker began her lesson by “reading an opening statement from the book”
and referring to a cork board describing the subject of the lesson. Pl.’s Mem. at 28;
Def.’s L.R. 56(a)(1) Stmt. at Ex. R, at 4. Moccio’s second formal observation also
recommends that Barker clearly state the objective of the lesson to the class, but the
observation summary reports that Barker reminded the students of the work being done
that week regarding the assigned exercise, and she explained the steps in the exercise
and what the class would be doing that day. Pl.’s Mem. at 28; Def.’s L.R. 56(a)(1)
Stmt. at Ex. S, at 4.
Moccio’s second formal observation asserts that Barker failed to “clearly
establish the ‘why’ behind the activity or lesson;” Barker argues that the failure to clearly
establish the “why” is the same thing as the failure to give a clear statement of the
lesson. Def.’s L.R. 56(a)(1) Stmt. at Ex. S, at 5; Pl.’s Mem. at 28. In support of this,
Barker observes that Moccio used the terms “what and why” and “objective”
interchangeably. Pl.’s Mem. at 28-29; see Pl.’s L.R. 56(a)(2) Stmt. at Ex. 18, at 7
Barker frames this argument around the AER that Moccio prepared on Barker at the
end of the 2008-2009 school year, drawing upon the recommendations for improvement listed in
the Report. EBE appears to assert that the AER cannot form the basis of Barker’s argument
because “there is no evidence that these were the reasons for nonrenewal.” Def.’s Reply at 7.
However, EBE also notes that the AER was a summary of concerns identified in the evaluations
of Barker conducted during the school year. Id. Given that EBE’s explanation for Barker’s
nonrenewal was her deficient classroom performance—an explanation it supports by citing
Moccio’s evaluations of her—EBE’s claim that the summary of these evaluations in the AER are
not the reasons for Barker’s nonrenewal is unavailing.
(responding to a question of why stating the objective is important by noting, in part, that
“[the students] need to understand why they’re doing what they’re doing on that given
day”), 39-40 (responding to question of what else Barker should have done to establish
the “what and why” of the lesson by stating that she should “clearly state the objective of
the lesson and then the explanation about why that objective is important to them).
Whether Barker improved, following the recommendations of Moccio, is also a
disputed issue. Moccio’s first formal evaluation stated that Barker needed to clearly
state the objective of the lesson, focus curricular objectives on previous and future
learning, promote the use of higher-order thinking among the students, and employ
additional techniques to address the variety of learning styles and needs of all learners.
Def.’s L.R. 56(a)(1) Stmt. at Ex. R, at 5-6. Moccio’s second formal evaluation reiterated
a need for Barker to clearly state the lesson objective, and then made two new
suggestions for improvement—using informal assessments with the students to make
changes in the lesson as needed and clearly establishing the “why” behind the lesson.
Id. at Ex. S, at 5. The evaluation did not mention any of the other concerns with
Barker’s performance noted in the first evaluation. Moccio’s informal observation of
Barker repeated the first evaluation’s concerns, that Barker’s teaching tested only lowlevel knowledge and failed to respond to different learning styles, but the observation
did note that Barker stated the objective of the lesson. Id. at Ex. U, at 3. LaPorte’s
informal evaluation of Barker also found that Barker stated the objective and explained
the “what and why” of the lesson, and that Barker responded to different learning styles.
Id. at Ex. Y; Pl.’s L.R. 56(a)(2) Stmt. at Ex. 19, 78:15-23, 79:1-3.
EBE contends that, so long as Moccio’s assessments of Barker’s performance
were not based upon her age, their accuracy is irrelevant. Def.’s Reply at 6. In support
of this claim, EBE cites Gilman v. Runyon, 865 F. Supp. 188 (S.D.N.Y. 1994), which
cautions that the fact finder should not “assess whether the employer’s decision was
erroneous or even rational, so long as the employer’s actions were not taken for a
discriminatory reason.” 865 F. Supp. 188 at 193. This statement in Gilman, however, is
in tension with the subsequent decision in Reeves that discriminatory intent can be
inferred from the falsity of an employer’s justification for its adverse action. 530 U.S. at
147. Barker argues just that—that EBE’s reasoning for her nonrenewal was founded on
error and thus is a pretext for discriminatory intent. In light of Reeves, the court cannot
dismiss evidence that Moccio’s evaluations of Barker were inaccurate. The decision in
McPherson v. NYC Dept. of Educ, 457 F.3d 211 (2d Cir. 2006), which EBE also cites,
fails to persuade the court otherwise. McPherson notes that, in a discrimination case,
the court is “decidedly not interested in the truth of the allegations against plaintiff,” but
is instead interested in “what motivated the employer.” 457 F.3d at 216. The plaintiff in
McPherson, however, offered no meaningful evidence of pretext, and instead attempted
to attack her employer’s conclusions on hearsay grounds. Id. at 215, 216. 216 n.7.
EBE also asserts that the court should not “second guess” Moccio’s conclusions.
Def.’s Reply at 7. In this regard, the court agrees. In Soderberg v. Gunther Int’l Inc.,
124 Fed.Appx. 30 (2d Cir. 2005), the Second Circuit observed that the plaintiff’s claim
that her former employee’s complaints were “petty” did not provide a basis for a jury
finding of pretext: “[t]o demonstrate that an employer’s proffered legitimate reason for
termination is a pretext for discrimination, a plaintiff must do more that conclusorily
dismiss the reason as petty . . . she must adduce admissible evidence that the reason is
false.” 124 Fed.Appx. at 32. Here, Barker has adduced admissible evidence that
Moccio’s conclusions were erroneous. Such evidence does not second guess his
conclusions, but instead raises an issue of material fact as to whether EBE’s proffered
reason for nonrenewing Barker, which is based on these conclusions, is false.
As Barker has, per Reeves, demonstrated a prima facie case of discrimination
and provided evidence upon which a jury may find that EBE’s justification for
termination is undermined, she has established pretext. 530 U.S. at 147. Summary
judgment is denied on this basis.8
Given that the court cannot conclude that a jury could not find that Barker was
non-renewed because of her age, EBE’s Motion for Summary Judgment (Doc. No. 29)
Dated at New Haven, Connecticut this 5th day of December, 2013.
__/s/ Janet C. Hall ________
Janet C. Hall
United States District Judge
Barker has raised a number of additional grounds for denying summary judgment. Pl.’s Mem. at
26-34. As the court has found a genuine issue of disputed fact in the performance evaluations of Barker
conducted by Moccio and LaPorte, it need not address these other grounds, with one exception.
Barker has argued that a jury could find pretext on the basis of the existence of past positive
evaluations of her teaching from Milbury. Id. at 26-27. As a matter of law, however, Milbury’s past
positive evaluations of Barker cannot support a finding of pretext. See Mattera v. JPMorgan Chase
Corp., 740 F.Supp.2d 561, 577 (S.D.N.Y. 2010) (“demonstration of past positive performance is
insufficient to raise a genuine issue of disputed fact with respect to pretext”); Godfrey v. Ethan Allen, Inc.,
No. 96-7978, 1997 WL 279933, at *2 (2d Cir. 1997) (unpublished table decision) (holding that evidence of
favorable evaluations prior to demotion cannot alone support a finding that the given reason for the
demotion of poor performance was pretextual).
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